Defendants did not file a claim or otherwise appear in
the forfeiture proceeding. In February 1995, when Multnomah
County prosecutors informed defendants that they would be seeking
a default, defendants responded that they would not contest the
forfeiture. Defendants moved out of the home in late February,
and a default judgment was entered on March 17, 1995.

After the court forfeited their home, defendants moved
to dismiss the criminal charges on the ground that prosecution of
those charges would violate the prohibitions against former and
double jeopardy in the state and federal constitutions. After a
hearing on the matter, the trial court granted the motion and
dismissed the charges. In its written dismissal order, the trial
court determined that the forfeiture had occurred in a different
judicial proceeding and that it had resulted from the same acts
that were the subject of the criminal charges. From those facts,
the trial court ruled that the forfeiture was "punishment" and
that further criminal prosecution or punishment respecting the
same acts would amount to former jeopardy. The court also held
that defendants had not waived their right to raise a former
jeopardy defense by failing to appear in the forfeiture action.

As noted, the state appealed the trial court order, and
the Court of Appeals reversed. With respect to defendants' state
constitutional claim, the Court of Appeals held that defendants
had waived any right to base a former jeopardy claim on the
forfeiture proceeding by failing to file an answer or otherwise
to appear in that proceeding:

"Our decision is based on our interpretation of Oregon
Laws 1989, chapter 791. Oregon's civil forfeiture
statute provides for mitigation if the court finds the
forfeiture excessive. The provision ensures that a
civil forfeiture is commensurate with the civil intent
of the statute and does not rise to the level of
criminal punishment. By failing to avail themselves of
the opportunity to present evidence that the civil
forfeiture of their home was so severe as to constitute
criminal punishment, defendants have forfeited the
chance to do so in this criminal proceeding. They
cannot now complain that they have been criminally
punished for double jeopardy purposes when they made no
effort to mitigate the alleged punishment when they had
the opportunity to do so."

Selness/Miller, 154 Or App at 586-87 (footnotes deleted). Having
concluded that defendants had waived their right to assert a
former jeopardy claim under Article I, section 12, the Court of
Appeals never reached the substantive question posed by the
state's appeal, viz., whether forfeiture of property under Oregon
Laws 1989, chapter 791, is or can be "jeopardy" for purposes of a
former jeopardy claim under the Oregon Constitution. The court
employed a similar rationale with respect to defendants' federal
double jeopardy claim. Id. at 588. The court reversed the trial
court's judgment. We allowed defendants' petition for review.
Defendants argue to this court that prosecution under
the indictments is barred by the jeopardy provisions in both the
state and federal constitutions, and that they have not waived or
forfeited the right to raise a claim under those provisions. We
first consider defendants' arguments with respect to the Oregon
Constitution. SeeState v. Kennedy, 295 Or 260, 262, 666 P2d
1316 (1983) (stating that state constitutional questions will be
addressed before federal constitutional questions).

II. FORMER JEOPARDY UNDER ARTICLE I, SECTION 12

A. Waiver

As noted, the Court of Appeals concluded that
defendants waived any former jeopardy claim that they otherwise
might have had under the Oregon Constitution by failing to appear
in the underlying forfeiture proceeding. Selness/Miller, 154 Or
App at 584-87. Defendants acknowledge that similar reasoning has
led courts in other jurisdictions to refuse to entertain any
former jeopardy claim that is based on civil forfeiture
proceedings in which the claimant did not appear. See, e.g.,
United States v. Torres, 28 F3d 1463 (7th Cir), cert den 513 US
1059 (1994) (owner who does not file claim in forfeiture
proceeding cannot base double jeopardy claim on that proceeding);
United States v. Cretacci, 62 F3d 307 (9th Cir), cert den 518 US
1007 (1995) (same). They argue, however, that those decisions
are unpersuasive and should not be followed. Defendants also
argue that those decisions are inconsistent with the Oregon
former jeopardy provision because they are based on a legal
fiction that is not accepted in this state, viz., the theory that
in rem forfeiture proceedings do not affect personal rights.

We note, first, that, in holding that defendants had
waived their right to assert a jeopardy defense, the Court of
Appeals never aligned itself expressly with any of the cases from
other jurisdictions that it discussed in its opinion. Rather,
that court set out its own theory of implied waiver -- that a
homeowner who fails to take advantage of the mitigation procedure
provided by the forfeiture statute cannot later complain that the
forfeiture that the homeowner suffered was so excessive as to
amount to criminal punishment. Selness/Miller, 154 Or App at
586-87.

We agree with the Court of Appeals' waiver analysis, as
far as it goes: In our view, defendants have waived their right
to argue that, as applied to them, the forfeiture scheme at issue
is punitive and counts as "jeopardy" for purposes of Article I,
section 12, of the Oregon Constitution. However, that conclusion
does not speak to defendants' principal argument, viz., that the
overall forfeiture scheme in Oregon Laws 1989, chapter 791, and
not just its particular effect in defendants' case, is criminal
in nature and effect. The question remains whether defendants'
failure to appear waived that argument as well as their as-applied challenge.

To answer that question, we turn to the other theories
of waiver mentioned, but not expressly approved, in the Court of
Appeals' opinion: (1) that, if no one makes a claim to property
in a civil forfeiture proceeding, then that property is ownerless
and its forfeiture punishes no one; (2) that an owner who chooses
not to become a party to a forfeiture proceeding cannot argue
that he or she has been subjected to the hazards of trial and a
determination of guilt that are the earmarks of jeopardy; and (3)
that the proper time for making a claim of ownership is in the
forfeiture proceeding, and the court will not hear a person who
has failed to make a claim of ownership at that time to make that
claim in a later criminal proceeding for the purpose of asserting
former jeopardy. SeeSelness/Miller, 154 Or App at 584-86
(summarizing theories). All three theories appear to proceed on
the premise that a property owner can overcome the civil, in rem
label that attaches to forfeiture proceedings, but only if the
property owner takes the formal step of appearing and contesting
the forfeiture.

We agree with defendants that all those theories place
undue importance on a property owner's decision to appear
formally in a forfeiture proceeding. To the extent that they
rely on a presumption that nonappearing property owners actually
have abandoned their property and, therefore, are not affected by
the proceeding or the forfeiture, they are not persuasive.
Property owners may have many reasons, other than lack of
interest, for failing to file a claim in a forfeiture proceeding,
including a realistic appraisal of their chances of obtaining a
successful outcome and a legitimate desire to avoid self-incrimination.

If, on the other hand, the state's waiver theories rely
only on the legal fiction that no ownership interest exists in
the absence of a claim, then they are equally unpersuasive. This
court never has treated property in in rem proceedings in a
manner that ignored the existence or interests of property
owners. See, e.g., State v. 1920 Studebaker Touring Car et al.,
120 Or 254, 269, 251 P 701 (1927) (automobiles may become subject
to in rem forfeiture if used for unlawful purpose, but proceeding
must be one in which party who is to be deprived of property is
accorded all his constitutional rights).

We turn to the substantive issue: Does a forfeiture
proceeding under Oregon Laws 1989, chapter 791, always put an
affected property owner in "jeopardy" within the meaning of
Article I, section 12, so that the fact that the proceeding
occurred precludes any later attempt to prosecute the property
owner criminally for the "prohibited conduct" alleged in the
forfeiture proceeding? Defendants argue that it does, because
jeopardy arises out of any proceeding that is "criminal in
nature" and because the forfeiture proceeding provided by Oregon
Laws 1989, chapter 791, is, in their view, such a proceeding.
The state acknowledges that jeopardy arises when a person might
be punished in a criminal proceeding, but argues that forfeiture,
as a proceeding and a sanction, is civil and has been since
before the adoption of Article I, section 12.

In evaluating those arguments, our task is to ascertain
the intent of the individuals who drafted and adopted Article I,
section 12. We consider the provision on three levels: its
specific wording, the case law surrounding it, and the historical
circumstances that led to its creation. SeePriest v. Pearce,
314 Or 411, 415-16, 840 P2d 65 (1992) (describing that method for
analyzing original constitutional provisions).

The meaning of the term "jeopardy" in Article I,
section 12, does not advance the inquiry much. In common
parlance, "jeopardy" means "danger" or "risk." By itself, the
term "jeopardy" conveys little about what sort of dangers or
risks to which the constitutional provision speaks. The question
remains: In "jeopardy" of what?

The text of Article I, section 12, speaks of "jeopardy
* * * for the same offen[s]e." Although the term "offense" can
pertain to a broad range of actions, including moral and
religious breaches and private, civil transgressions, those are
not matters that usually are a concern of the law and, even less,
of constitutions. Respecting the law and constitutions, the term
most often is used to refer to criminal violations. Black's Law
Dictionary, for example, defines "offense" as:

"A felony or misdemeanor; a breach of the criminal
laws; violation of law for which penalty is prescribed.
The word 'offense,' while sometimes used in various
senses, generally implies a felony or a misdemeanor
infringing public as distinguished from mere private
rights, and punishable under the criminal laws, though
it may also include the violation of a criminal statute
for which the remedy is merely a civil suit to recover
the penalty."

Black's Law Dictionary, 1081 (6th ed 1990). Thus, it is most
likely that the term "offense" in Article I, section 12, is
"about" criminal law and criminal proceedings.

Historically, Article I, section 12, was borrowed from
a similar provision in the Indiana Constitution of 1851, and that
the Oregon Constitutional Convention adopted it without any
recorded discussion. Charles Henry Carey, The Oregon
Constitution and Proceedings and Debates of the Constitutional
Convention of 1857, 468 (1926). There are relatively few Indiana
cases that pertain to Indiana's 1851 former jeopardy provision
that antedate Oregon's adoption of Article I, section 12.
Although those cases generally are consistent with the notion
that former jeopardy pertains only to criminal law and
proceedings, none of them directly addresses the point. See,
e.g., Wright v. The State, 5 Ind 527 (1854) (retrial of criminal
homicide case after jury found defendant guilty of assault and
battery); Miller v. State, 8 Ind 325 (1856) (state could not
retry criminal grand larceny case when discharge of first jury
was not necessary).

In one pre-1857 Indiana case, Taber v. Hutson, 5 Ind
322 (1854), the Indiana Supreme Court used the "principle"
embodied in Indiana's former jeopardy clause to find that
punitive damage awards are not permissible in civil tort actions
when the underlying offense also subjects the offender to
criminal prosecution. The court acknowledged, however, that the
Indiana former jeopardy provision itself was not directly
applicable to "remedies secured by civil proceedings." Id. at
325. Within a few years of Taber (albeit after Oregon's adoption
of Indiana's former jeopardy wording), the Indiana court
indicated, even more decisively, that its former jeopardy
provision would not apply to a proceeding that was "not a
prosecution for a crime or offense committed." Zehner v.
Vankirk, 27 Ind 121, 122 (1866).

Beyond its Indiana roots, the historical circumstances
in which Article I, section 12, was adopted also suggest, in a
general way, that the former jeopardy concept pertains to
criminal proceedings. Of course, at the relevant time (i.e.,
before 1857), most of the commentary focused on the common-law
notion of double jeopardy or on the federal double jeopardy
clause. However, it is clear that such commentary assumes that
"jeopardy" arises in the context of a criminal prosecution. See,
e.g., Joseph Chitty, A Practical Treatise on the Criminal Law,
452 (1847 ed) (discussing double jeopardy principle as presenting
"an insurmountable barrier to a second prosecution"). Similarly,
virtually all the United States Supreme Court's double jeopardy
cases prior to 1857 involved a second criminal prosecution. See,
e.g., United States v. Perez, 9 Wheat 579, 6 L Ed 165 (1824) (no
double jeopardy violation if criminal defendant is retried after
jury fails to agree on verdict); United States v. Randenbush, 33
US 288, 8 L Ed 948 (1834) (no double jeopardy problem when
defendant criminally indicted for different offense after
acquittal).

Finally, we consider the case law surrounding Article
I, section 12. In general, this court's case law confirms what
the wording and history of Article I, section 12, indicate, viz.,
that "jeopardy" arises only in the context of criminal
proceedings. See, e.g., State v. Welch, 264 Or 388, 505 P2d 910
(1973) (involving criminal prosecution on two separate counts of
publishing false checks); State v. Brown, 262 Or 442, 497 P2d
1191 (1972) (involving separate criminal prosecutions for
misdemeanor of carrying a concealed weapon and being convict in
possession of a firearm, a felony); City of Portland v. Erickson,
39 Or 1, 6-7, 62 P 753 (1900) (stating that jeopardy provision in
Article I, section 12, applies to proceedings carried out in same
manner as criminal cases are prosecuted).

However, a few of this court's cases add an additional
wrinkle to the former jeopardy analysis: They suggest that any
inquiry under Article I, section 12, looks behind a proceeding's
civil label and considers the substance of the proceeding. The
earliest, and most significant, of those cases is Erickson. In
Erickson, this court considered whether it would violate Article
I, section 12, if a defendant's acquittal of a city ordinance
violation were reversed and the defendant were required to face a
retrial. Nominally, the violation was a civil matter, and the
city argued that the former jeopardy concept was inapplicable.
39 Or at 2-5.

The Erickson court disagreed. In analyzing the
problem, the court began with the assumption that "jeopardy"
refers to only criminal prosecutions. It then announced that the
constitutional notion of jeopardy may apply to proceedings that,
although civil in name or form, are criminal "in nature":

"[W]here, under the statute and ordinances, enforcement
is sought by resort to proceedings authorized and
carried on in all respects as criminal cases are
prosecuted -- by complaint and warrant -- and where the
court is empowered to inflict upon the accused not only
a fine, which may be followed by imprisonment for its
nonpayment, but also imprisonment aside from any
pecuniary penalty or forfeiture, such proceeding
becomes so far criminal in its nature, and the
violation of the ordinance such an offense, that a
person acquitted thereof can not be again put in
jeopardy for the same offense."

39 Or at 7. Thus, Erickson instructs us that, even if a
proceeding bears a "civil" label, it may place a person "in
jeopardy" for purposes of Article I, section 12, if it is
criminal "in its nature."

What determines whether a proceeding is, in fact,
criminal "in its nature," so that the former jeopardy prohibition
in Article I, section 12, is triggered? Erickson is instructive.
First, it is notable that, in deciding that case, the Erickson
court did not set aside the "civil" designation as irrelevant.
Rather, it found that, because certain aspects of the ordinance
were incompatible with that designation, the proceeding became
"so far criminal in its nature" that it amounted to jeopardy. 39
Or at 7 (emphasis added). Erickson suggests, in other words,
that a "civil" designation (i.e., a clear indication that the
legislating body intends to create a civil proceeding) is
relevant, but may be overcome if application of substantive
constitutional standards demonstrate that that designation is
incorrect (i.e., the proceeding is in substance "[too] far
criminal in its nature" to be deemed civil for former jeopardy
purposes).

Erickson informs our present inquiry in another way.
The Erickson court concluded that the proceeding that it was
examining was criminal "in its nature" because it included
certain pretrial procedures (information and warrant) and a
potential penalty (incarceration) that were associated
exclusively with criminal proceedings. Erickson thus suggests
that the use of traditional criminal pretrial procedures, coupled
with the potential for incarceration, may mark an otherwise civil
proceeding as criminal in nature, at least for purposes of
Article I, section 12.

Another Article I, section 12, case, State v. Morrow,
158 Or 412, 75 P2d 737 (1938), confirms that the potential
penalty associated with a proceeding is of paramount importance
in determining whether the proceeding is "criminal in its
nature." In that case, the court held that jeopardy within the
meaning of Article I, section 12, cannot arise out of a filiation
proceeding because such proceedings do not involve any potential
penalty:

"Jeopardy has application to proceedings which
subject the guilty to the imposition of a penalty.
Some courts include within the category of penal
proceedings only criminal actions wherein a fine may be
imposed or the defendant may be sentenced to
confinement in a penal institution, while other courts
include within the category civil proceedings in which
punitive damages are sought. * * * A filiation
proceeding, being civil in nature and authorizing the
imposition of no penalty, cannot place a defendant in
jeopardy of life or liberty."

Id. at 416-17 (citations omitted). Morrow is unspecific about
the kinds of penalties that mark a civil proceeding as criminal
in nature, but leaves open the possibility that penalties other
than imprisonment might qualify. Thus, Erickson and Morrow, both
decided under Article I, section 12, suggest that, for purposes
of determining whether a proceeding qualifies as "jeopardy,"
criminal proceedings can be identified as such by the fact that
they expose persons who are subject to them to procedures and
penalties that are peculiarly associated with the criminal law.

At this point, we briefly summarize our examination of
the wording, history, and case law surrounding the former
jeopardy clause of Article I, section 12. First, we have
determined that, for purposes of Article I, section 12,
"jeopardy" arises only in criminal proceedings. Second, we have
determined that, although a proceeding may be designated as
"civil" by the legislature, that designation may be overcome by a
showing that the proceeding is "so far criminal in its nature"
that it amounts to a criminal proceeding. Finally, we have
observed that a nominally civil proceeding may be shown to be
criminal "in its nature" by the fact that it employs certain
procedures (e.g., "complaint and warrant") and may result in
certain penalties, including imprisonment.

Defendant recommends another case, Brown v. Multnomah
County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), as setting out
the proper methodology for determining whether a proceeding is
criminal "in its nature" (and, thus, "jeopardy," for purposes of
Article I, section 12). Because that case was not decided under
Article I, section 12, and does not purport to construe that
provision, it is not strictly within the scope of the analysis
set out in Priest v. Pierce. We are persuaded, however, that the
general discussion in Brown is relevant to our present analysis
and that Brown should be examined at this juncture. Still, in
considering Brown, we remain mindful that certain parts of the
discussion might not translate perfectly into the former jeopardy
context.

Brown came to this court as a challenge to a first-time
conviction on a charge of driving under the influence of
intoxicants (DUII). On review, the defendant argued that the
trial court had committed reversible error by denying his motion
for an order granting him court-appointed counsel, a jury trial,
and prosecution under a "beyond a reasonable doubt" standard of
proof -- all rights that traditionally are guaranteed in
criminal, but not civil, proceedings. The defendant acknowledged
that the legislature had purported to recategorize first-offense
DUII from a criminal to a civil offense. He argued, however,
that the first-time DUII offense retained sufficient
characteristics of a criminal charge to require compliance with
the constitutional guarantees applicable in criminal
prosecutions. Id. at 97.

In considering that challenge, the court in Brown began
by identifying the sources of the rights at issue, finding that
two -- the right to counsel and to a jury trial -- were
guaranteed by Article I, section 11, of the Oregon Constitution,
while the other -- the right to be prosecuted under the criminal
"beyond a reasonable doubt" standard -- derived from the federal
due process requirement of the Fourteenth Amendment. After
declaring that those rights apply to all proceedings that have
the "character" of criminal prosecutions, id. at 98-99, the court
identified five "indicia" as relevant in assessing whether an
ostensibly civil proceeding in fact is a criminal prosecution for
constitutional purposes: (1) the type of offense and,
specifically, whether the offense historically has been viewed as
a crime or involves traditional common-law elements of crime,
e.g., mens rea; (2) the severity and "significance" of the
penalty; (3) the significance of any collateral consequences that
attach to the proceeding; (4) the punitive or "stigmatizing"
significance of the judgment or penalty; and (5) the fact that
traditional criminal pretrial procedures, such as arrest and
detention, are used with respect to the offense. Id. at 102-08.
After considering those indicia, the Brown court concluded that
the offense at issue -- first-offense DUII -- retained "too many
penal characteristics" not to be a criminal prosecution for
purposes of Article I, section 11, and that, consequently, the
defendant was entitled to the order that he sought. Id. at 109-11.

Brown's discussion of the indicia of a criminal
proceeding is relevant in the present Article I, section 12
context, because it is immediately apparent, from an examination
of the indicia identified in Brown, that several of those factors
closely parallel factors that Erickson and other Article I,
section 12, cases have identified as significant. For example,
Brown asserts that the use of arrest and detention and similar
practices associated with the enforcement of criminal laws
(including the use of physical restraints, search of the person,
booking, fingerprinting, etc.) are strongly indicative of a
criminal proceeding. That assertion echos Erickson's focus on
enforcement by "proceedings authorized and carried on in all
respects as criminal cases are prosecuted." SeeErickson, 39 Or
at 7 (referring to enforcement of city ordinance by complaint and
warrant).

Brown's identification of the "penalty" as a relevant
indicator also is consistent with this court's Article I, section
12, cases. Brown describes the prescribed penalty as the "single
most important criterion" for distinguishing criminal from civil
proceedings, particularly when a potential penalty is
imprisonment. 280 Or at 103. Erickson and Morrow also hold that
the penalty is a crucial consideration.

Brown also offers, as a separate indicium of a criminal
proceeding, what it terms the "punitive significance" of the
judgment. Id. at 105. While that factor could be interpreted as
another allusion to the "infamous" nature of certain penalties,
e.g., imprisonment, the Brown court was referring to a broader
concern, i.e., "whether a judgment carries stigmatizing or
condemnatory significance." Id. at 106. Although the court
acknowledged the difficulties inherent in weighing that
consideration, it nevertheless included the consideration in its
test, and ultimately relied heavily on that factor to conclude
that first-time DUII under ORS 484.365 (1975) was a criminal
offense for constitutional purposes.

Insofar as Brown holds that the severity and the
"infamous" nature of the prescribed penalty is an important
consideration in distinguishing criminal from civil proceedings,
we think that it is a reasonable extension of this court's
Article I, section 12, jurisprudence. We agree with the Brown
court that heavy fines, for example, must be justified in terms
of their supposed civil purpose and that, if they are not, they
may be deemed to be criminal punishment. Neither do we reject
the possibility that, on some occasions, the stigma associated
with a penalty or judgment might mark a proceeding as criminal
for purposes of Article I, section 12. We emphasize, however,
that that factor requires a showing of a stigma on the individual
and not just a showing of some vague public disapproval of the
behavior in question.

This court recently addressed an analogous problem in
State v. MacNab, 334 Or 469, ___ P3d ___ (2002). In that
criminal case, the defendant, a convicted sex offender, argued
that requiring him to register as a sex offender under a sexual
offender registration act was a "further punishment" for his
original offense and, as such, was forbidden by the ex post facto
prohibitions of the Oregon and federal constitutions. (11) The act
had been passed after the defendant was convicted of the
underlying crime. As in the present case, the defendant in
MacNab relied, in part, on the Brown decision.

In MacNab, this court considered the same reference in
Brown to the "punitive significance" of a statutory procedure.
The court there recognized, as we do again today, that the
purpose of the criminal law as stated in Brown, viz., to provide
"'retribution and deterrence,' * * * meaning deterrence both of
the individual defendant and of persons in his situation
generally," 280 Or at 105, did not much advance the discussion.
Instead, the court inquired more deeply into the meaning of the
concept of "punishment" as it related to the purposes for which
Oregon's ex post facto provision was established. The court
concluded that, for purposes of ex post facto analysis, the
question was "whether those punitive attributes (detriment,
restraint, or deprivation intended to deter the offender and
others) are present to such a degree that the application to the
defendant violates Article I, section 21, of the Oregon
Constitution." MacNab, 334 Or at 479. In that case, the court
concluded that "requiring defendant to register as a sex offender
does not impose any significant detriment, restraint, or
deprivation on defendant and, therefore, is not a form of
increased 'punishment' prohibited by Article I, section 21, of
the Oregon Constitution." Id. at 481.

The analysis under Article I, section 21, in MacNab
was, in our view, consistent with the test that we here announce
under Article I, section 12. So long as a particular forfeiture
is justifiable in terms of its civil purpose, the incidental
detriment, restraint, or deprivation that it may impose will not
rise to the level of a "criminal" punishment.

Brown also states that the "type of offense" is an
indicator of the true nature of a proceeding. That is, the
factor focuses on the nature of the alleged illegal act itself.
That factor most directly relates to the distinction between
Article I, section 11, and Article I, section 12. Article I,
section 11, focuses directly on the rights of persons "[i]n all
criminal prosecutions," i.e., their rights in a proceeding to
impose a criminal punishment. The focus under Article I, section
12, has been somewhat different, centering on the practical
effect of the outcome of a proceeding on the persons who are
subjected to it, i.e., on the consequences such persons might be
forced to endure. See, e.g., Erickson, 39 Or at 7 (focusing on
statute's provision for imprisonment and on use of complaint and
warrant). We think that it follows that the Brown "type of
offense" does not add anything to the standard already enunciated
in Erickson. We therefore do not include that Brown factor in
our analysis under Article I, Section 12.

Brown identifies one more factor -- "collateral
consequences" -- as an indicator that a proceeding is criminal in
nature. By the term "collateral consequences," Brown appears to
refer to additional burdens and losses that flow automatically
from a judgment in a proceeding and that amount to "another form
of punishment." 280 Or at 105. Although collateral consequences
are not mentioned in this court's Article I, section 12,
jurisprudence, we think it obvious that, if a law operates to
impose burdens or penalties as additional consequences of a
judgment in a proceeding, those burdens may be relevant to
determining whether the proceeding is criminal in nature. Thus,
the Brown "collateral consequences" factor also is compatible
with this court's Article I, section 12, jurisprudence.

Having examined the five factors identified in Brown as
they relate to this court's own Article I, section 12,
jurisprudence, we conclude that four are useful in the Article I,
section 12, context: (1) the use of pretrial procedures that are
associated with the criminal law, such as indictment, arrest, and
detention; (2) the potential for imposition of a penalty that is
historically criminal or "infamous," or that cannot be justified
fully in terms of the civil purposes that the penalty supposedly
serves; and (3) the potential for a judgment or penalty that
carries public stigma; (4) the potential for collateral
consequences that, either taken by themselves or added to the
direct consequences of the underlying forbidden acts, amount to
criminal penalties. For the reasons set out above, the remaining
Brown factor -- the type of offense -- adds nothing new in the
former jeopardy context.

We conclude that the proper test for determining
whether an ostensibly civil proceeding is criminal in nature and
amounts to "jeopardy" is as follows. First, we determine whether
the legislature intended to create a civil proceeding. If we
conclude that the legislature did so intend, then we apply the
factors that we have identified as possible indicators of a
criminal proceeding and, in particular, the four Brown factors
that we have emphasized.

C. Application to Oregon Laws 1989, Chapter 791.

Applying that test to the case before us, we begin by
examining the label attached to forfeiture under Oregon Laws
1989, chapter 791. There is no question that the legislature
intended to, and did, categorize that proceeding as civil. The
statute repeatedly refers to civil forfeiture. The findings
clearly express a civil intent. See Or Laws 1989, ch 791, § 1(5)
("[t]he application of any remedy under this Act is intended to
be remedial and not punitive"). Other findings and provisions
suggest, and are consistent with, remedial purposes: (1) to
render the sale and manufacture of illegal drugs unprofitable by
confiscating the proceeds of those activities; (2) to make those
activities more difficult by confiscating the tools and property
that have made those activities possible; and (3) to reimburse
governments for their costs in enforcing drug laws. See Or Laws
1989, ch 791, § 1(a) and (c) (setting out findings that
prohibited conduct is profitable and that conduct is facilitating
acquisition and possession of property subject to forfeiture
under chapter); Or Laws 1989, ch 791, § 3 (setting out types of
property subject to forfeiture, i.e., controlled substances
themselves, raw materials, containers, conveyances, money and
things of value that are proceeds of prohibited conduct, and real
property used to commit or facilitate prohibited conduct). Still
other provisions suggest an intent to avoid punitive effects.
See Or Laws 1993, ch 699, §§ 13-15 (providing for mitigation to
prevent excessive forfeiture and providing that court shall
consider, in determining if forfeiture is excessive, degree of
relationship between forfeited property and prohibited conduct,
whether forfeited property constitutes claimant's lawful
livelihood or residence, etc.).

Having established that the legislature intended to
create a civil proceeding and remedy when it enacted the statutes
at issue, we next examine the proceeding in light of the four
factors that we have identified as relevant.

1. Pre-trial Procedures (indictment, arrest, detention,
etc.)

Oregon Laws 1989, chapter 791, does not provide for the
arrest and detention of property owners, or for any other
procedure with similar criminal consequences for the property
owners.

2. Nature of Potential Penalty

The state argues that, historically, the law has viewed
in rem forfeiture as a civil, rather than a criminal, action. We
agree that there is strong support for that view, although the
evidence is not entirely one way. See, e.g., Calero-Toledo v.
Pearson Yacht Leasing Co., 416 US 663, 681-90, 40 L Ed 2d 452,
466-71, 94 S Ct 2080 (1974) (tracing federal view that in rem
forfeitures, as opposed to deodand forfeitures, only pertain to
property and treat guilt or innocence of the property owner as
irrelevant); but compareBoyd v. United States, 116 US 616, 633-35, 29 L Ed 746, 752, 6 S Ct 524 (1886) (holding that proceeding
to forfeit of fraudulently imported goods was quasicriminal and
therefore sufficient to implicate prohibition on compulsory self-incrimination). Even if the evidence regarding the historical
view of in rem forfeiture is not entirely unequivocal, it is
clear that forfeiture is not an "infamous" penalty, the potential
for which, like imprisonment, automatically marks a proceeding as
criminal in nature.

Neither does it appear that there are any grounds for
claiming that forfeiture under Oregon Laws 1989, chapter 791, is
inconsistent with, or excessive in relation to, the statute's
civil purpose. We already have noted that the forfeiture statute
announces several remedial purposes, e.g., to render drug
manufacture and trafficking activities unprofitable by
confiscating the proceeds, to render those activities more
difficult by confiscating tools and other property that
facilitate the activities, and to provide resources to
governments that enforce drug trafficking laws.

Defendants do not deny that those purposes exist, but
argue that the forfeiture scheme is unrelated to those purposes.
They contend that the forfeiture of their home was personally
"staggering" and that it is impossible to justify their $60,000
loss as necessary to cover the state's investigative and
prosecutorial costs or in terms of some other nonpunitive
purpose.

That is the point at which defendants' procedural
choices during the forfeiture proceeding become relevant. As we
have shown, the statutory scheme on its face expresses a
legislative intent to keep its sanctions within constitutional
bounds and provides a "mitigation" mechanism that purports to
serve that intent. To the extent that defendants' argument
focuses on any alleged excessiveness of their own $60,000 loss,
it is an "as applied" argument and foreclosed by their failure to
intervene in the forfeiture proceeding and seek mitigation. We
cannot presume that, if defendants had made the kind of showing
in mitigation that they statutorily were entitled to make, the
final outcome would have been disproportionate.

To the extent that defendants are suggesting that the
entire statutory scheme is excessive -- and that is their burden
-- we are not persuaded. Depending on the circumstances,
forfeiture of an entire house or any other property that is a
subject of Oregon Laws 1989, chapter 791, may be justified fully
in terms of the remedial purposes of removing the tools of a drug
manufacturer's or trafficker's trade and of confiscating profits.
Moreover, the clear purpose and effect of the mitigation
procedure set out at Oregon Laws 1993, chapter 699, section 13,
is to ensure that forfeitures are not excessive in relation to
those purposes. Although defendants in this case did not avail
themselves of that procedure, its availability precludes any
claim that the statute on its face provides for sanctions that
cannot be justified in terms of civil purposes.

3. Stigmatizing Effect

Defendants also argue that the stigma associated with
forfeiture under Oregon Laws 1989, chapter 791, marks the
proceeding as criminal. Defendants argue that persons who lose
their home in a drug-related forfeiture "bear as much public
condemnation, if not more, as persons convicted of such crimes as
DUII, reckless endangering or felony driving while suspended."

Defendants' comparison to DUII and reckless
endangerment is not persuasive. We are searching here for a
level of stigma of the individual that marks a forfeiture
proceeding as criminal in nature in the constitutional sense.
There may be some vague public condemnation associated with the
forfeiture of a home, but that same vague condemnation also
occurs when homes are lost in the context of proceedings that are
indisputably civil, e.g., foreclosures or proceedings to abate a
nuisance.

4. Collateral Consequences

Defendants suggest that they have had to endure
collateral consequences that flowed from the forfeiture here --
forced relocation and economic devastation -- and that those
consequences demonstrate the punitive nature of the forfeiture
proceeding. But those are consequences peculiar to these
defendants and, for all that we can determine on this record, are
the specific results of their tactical choices. The consequences
are not the result of a legislative choice to impose those
particular burdens, along with forfeiture, in all cases. Indeed,
assuming full participation in a mitigation hearing, it may be
that no offender would have to suffer the collateral consequences
that defendants have experienced.

D. Conclusion

Having examined the forfeiture scheme provided at
Oregon Laws 1989, chapter 791, in light of the foregoing
elements, we conclude that nothing in the scheme negates the
legislature's intent to provide a civil procedure and sanction.
For purposes of Article I, section 12, a forfeiture proceeding
under that statute is not "so far criminal" on its face as to
constitute jeopardy.

III. DOUBLE JEOPARDY UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION

We turn to defendants' double jeopardy arguments under
the Fifth Amendment to the United States Constitution.
Defendants first argue, as they did with respect to the Oregon
former jeopardy provision, that their failure to file a claim in
the forfeiture proceeding does not foreclose a present double
jeopardy claim. They acknowledge that many federal courts that
have considered the question under the Fifth Amendment have
concluded that failure to appear in a forfeiture proceeding does
preclude any later attempt to base a double jeopardy claim on the
resulting forfeiture. They note, however, that that conclusion
never has been approved by the United States Supreme Court.

We already have discussed our reservations respecting
the logic that federal courts have employed in support of their
view that failure to appear in a forfeiture proceeding somehow
forecloses any subsequent double jeopardy claim. At the same
time, we must acknowledge that that view has gained almost
universal acceptance among the circuits. But this case does not
require us to resolve our analytical difference with the
circuits, because defendants' federal double jeopardy claim fails
on the merits.

The Supreme Court rejected the owner's double jeopardy
claim based on the following two-part analysis:

"That a forfeiture is designated as civil by Congress
and proceeds in rem establishes a presumption that it
is not subject to double jeopardy. * * * Nevertheless,
where the 'clearest proof' indicates that an in rem
civil forfeiture is 'so punitive either in purpose or
effect' as to be equivalent to a criminal proceeding,
that forfeiture may be subject to the Double Jeopardy
Clause."

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

1. Article I, section 12, of the Oregon Constitution,
provides, in part: "No person shall be put in jeopardy twice for
the same offen[s]e." Similarly, the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution provides
that no person shall "be subject for the same offence to be twice
put in jeopardy of life or limb."

3. Oregon Laws 1989, chapter 791, provides for two forms
of forfeiture: (1) nonjudicial forfeiture, which may be used to
forfeit personal property, "which is not subject to an interest
in favor of any person known to have an interest, other than a
person who engaged in prohibited conduct," Or Laws 1989, ch 791,
§ 6; and (2) judicial forfeiture, which may be used in any case
in which forfeiture is sought and which must be used if the
property to be forfeited is real property or is subject to an
interest in favor of a person other than a person who engaged in
prohibited conduct, Or Laws 1989, ch 791, § 7. Because the City
sought to forfeit defendants' home, i.e., real property, it was
required to use the judicial forfeiture proceeding provided in
Oregon Laws 1989, chapter 791, section 7.

"(7) All real property, including any right, title
and interest in the whole of any lot or tract of land
and any appurtenances or improvements, which is used,
or intended to be used, in any manner or part, to
commit or facilitate in any manner the commission of
prohibited conduct."

"violation of, solicitation to violate, attempt to
violate or conspiracy to violate any provisions of ORS
475.005 to 475.285 and 475.805 to 475.999 when the
conduct constitutes either a felony or misdemeanor as
those terms are defined in ORS 161.525 and 161.545."

(Emphasis added.) ORS 475.005 to ORS 475.285 and ORS 475.805 to
ORS 475.999 are statutory provisions that make possession,
manufacture, and delivery of controlled substances, including
marijuana, crimes.

"[a] person claiming an interest in the property shall
respond as provided in the Oregon Rules of Civil
Procedure and, if a claim has not previously been
filed, by filing a claim in the form set forth in
section 6(3), chapter 791, Oregon Laws 1989, with the
court and posting a bond with the court. The bond
shall be a cash bond in an amount equal to 10 percent
of the value of the interest claimed by the person in
the property. * * * Failure to file an appearance,
claim and bond shall constitute a default. The bond
shall be returned to the claimant upon the entry of a
final determination of the claim."

"(1) A claimant may plead as an affirmative
defense that the claimant took the property or the
interest which the claimant holds therein:

"(a)(A) Before it was seized for forfeiture:

"(B) In good faith and without intent to defeat
the interest of any forfeiting agency; and

"(C) Continued to hold the property or interest
without acquiescing in the prohibited conduct; or

"(b) By coownership or cotenancy taken in good
faith, without intent to defeat the interest of any
forfeiting agency and continued to hold the property or
interest without acquiescing in the prohibited conduct.

"(2) A claimant may plead as an affirmative
defense that the property was seized in violation of
section 20, chapter 699, Oregon Laws 1993.

"(3) In any action brought against property
subject to forfeiture under section 3(7), chapter 791,
Oregon Laws 1989, a claimant may plead as an
affirmative defense that the controlled substance was
solely for personal use."

"(2) A claimant who has filed a claim to seized
property, appeared in the action, and part or all of
whose interest in the claimed property is forfeited
under the terms of the proposed judgment may file a
motion for a mitigation hearing.

"* * * * *

"(3) If a motion for a mitigation hearing is
filed, the court shall determine whether any portion of
the proposed judgment is excessive in the manner
provided by section 15 of this 1993 Act.

"* * * * *

"(5) The court may make such orders, as may be
necessary to insure that the forfeiture is not
excessive."

Section 15 of Oregon Laws 1993, chapter 699, referred to above,
provides that the court will consider various factors in
determining whether the proposed forfeiture judgment is
excessive, including "the extent that the defendant property is
derived directly or indirectly from past prohibited conduct,"
"whether the defendant property constitutes the claimant's lawful
livelihood or means of earning a living," "whether the defendant
property is claimant's residence," "the degree of relationship
between the defendant property and the prohibited conduct,"

"the monetary value of the defendant property in relation to the
risk of injury to the public from the prohibited conduct," "the
monetary value of the defendant property in relation to the
actual injury to the public from the prohibited conduct," and
"the monetary value of the defendant property in relation to
objective measures of the potential or actual criminal
culpability of the person or persons engaging in the prohibited
conduct."

9. As discussed above, however, owners who fail to take
advantage of mitigation procedures provided in a forfeiture
proceeding (as defendants did in this case) are barred from
arguing, on the basis of the outcome and effects of the
forfeiture in their particular case, that the proceeding is
jeopardy for purposes of Article I, section 12.

10. Thus, the Brown court wrote, with regard to the $1,000
fine that was the penalty for a first-time DUII conviction:

"It proves little about a $1,000 fine for driving under
the influence of intoxicants that much larger civil
penalties are levied against business enterprises for
violations of various regulations in the course of
business. We deal here with fines payable by ordinary
individuals for misconduct unrelated to the pursuit of
a profitable activity."

12. The forfeiture in Ursery was brought under 21 USC
section 881(a)(7), which provides a procedure for forfeiting
property, including real property, that is used in the
manufacture of controlled substances.

13. Neither is the present case distinguishable because
defendants lost $60,000 in equity, whereas the defendant in
Ursery lost only $13,250. As a more recent United States Supreme
Court case, United States v. Hudson, 522 US 93, 101-02, 118 S Ct
488, 139 L Ed 2d 450 (1997) makes clear, the federal Double
Jeopardy Clause evaluates a statute on its face to determine
whether it provides what amounts to a criminal sanction, not on
the basis of the actual sanction imposed in a particular case.
To the extent that defendants' loss was greater than the
forfeiture that was deemed civil in Ursery, they have not
demonstrated that the difference arises from a facial difference
between the overall forfeiture schemes.